Law Review: Guilt and arrest fused to eliminate presumption of innocence

The notion that an individual is presumed innocent until proven guilty is a guiding principle of the American justice system, reported The Crime Report. But the way people both inside and outside the system treat those who are arrested calls that principle into question—and complicates reform efforts, according to a forthcoming paper in the Alabama Law Review.

The paper’s author, Anna Roberts, a professor at the Seattle University School of Law, calls the phenomenon a “fusion” of arrests with guilt in the perceptions of many of the justice system’s key players, as well as the media, and she argues that it has affected every phase of the justice process.

“The stage that is supposed to lie between arrest and adjudication—that period of diligent investigation, zealous representation, exploration of defenses, and possible dismissal—has too often collapsed in our…understandings of the criminal legal system,” writes Roberts,

On average, there are 11 million arrests in the U.S. every year. Few of these arrests lead to actual convictions, but many individuals experience negative consequences as a result of contact with the justice system, in ways similar to those actually found guilty, according to Roberts.

For example, she writes, the legal repercussions of an arrest can include a permanent record accessible to police and employers, threats to child custody and the initiation of deportation affairs. People who are arrested and stand trial but found not guilty can still be plagued by negative social stigma, and find themselves suspended, fired or turned down for future jobs.

Just as significantly, the “fusion” of arrests with guilt weakens public support for policing and sentencing reforms, added Roberts, noting that when individuals are detained for long periods of time before a trial, those who assume an arrestee is initially guilty may think of this simply as “punishment paid in advance,” and are less likely to care about issues like pretrial diversion.

Similarly, the association made between arrests and guilt also affects how the public views a defendant’s right to legal counsel, the paper said.

When arrestees are viewed as guilty individuals, concern about due process or improvement of defense representation, particularly for indigents, may be seen as just a “waste of time” or an unethical way to get a client off the hook.

Roberts also argues that the “fusion” can lead to misleading data about recidivism.

She contends that the assumption of guilt is baked into the statistics, both in primary and secondary sources. In part, this is because it is easier to measure initial arrests than to collect follow-up data on complex or lengthy court outcomes. In recidivism data collected, “arrests can be—and are—used as a proxy for either initial criminal behavior or subsequent criminal behavior,” Roberts writes.

Roberts cites the United States Sentencing Commission’s report on federal child pornography offenses, in which “known recidivism” is defined to include arrests even where the outcome of the case is unknown.

Instead, she proposes, recidivism should only be measured by known convictions, because the data is then used to shape incarceration reform programs and policies, such as what “rehabilitative or reentry programs should be funded or offered, how probation and supervised release should function” and “whether diversionary and treatment programs are working.”

In the courthouse, judges also frequently use arrests to gauge an individual’s risk of committing further offenses, regardless of whether he or she was found guilty. That translates into disproportionately high bail amounts and more people detained pending trial, she writes.

Prosecutors, meanwhile, act under the public mandate to “do justice.” When arrestees are presumed guilty, “justice might well be seen as identical to the pursuit of convictions…,” leading to inflated charges and stymying efforts to curb prosecutorial misconduct, writes Roberts.

Given widespread and pervasive tendency to view arrests as guilt, “it may be unsurprising how halting reform has been of policing problems,” she adds, “including racially disparate policing and arrests,” and perverse incentives to arrest such as overtime pay or prospects for job advancement.

Accentuating this fusion, many believe that police have the leading role in “bringing the guilty to light,” rather than the fact-finders of judges or juries, the paper says.

In another example, she points to how arrests can become a public performance staged by police and the media─from “perp walks,” the parading of arrestees through public spaces, to 30 seasons of the reality police show “COPS”—which reinforce the presumption of guilt. Roberts also takes the media to task for reporting police accounts of arrests in a manner that appears to prejudge the guilt of an individual.

Roberts offers a few explanations to the fusion of arrest with guilt, including the reliance on plea bargaining, and the use of diversion programs to classify guilty individuals (regardless of actual criminality).

The complete article, entitled “Arrest as Guilt,” can be downloaded here.

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WFMJ-TV21 Legal expert Matt Mangino weighs in on Jordan Brown overturn, Cohen tape.

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The Emoluments Clause

Robert J. Delahunty Associate Professor of Law at the University of St. Thomas School of Law writes for the Heritage Foundation: 

 Article VI of the Articles of Confederation was the source of the Constitution's prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.

The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a republic was "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during good behavior."

Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.

Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the "Corruption of Blood" worked by "Attainder[s] of Treason" (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.

In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsey, the eighteenth-century historian of the American Revolution, called the "life and soul" of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the "diversity in the faculties of men," the protection of which, as Madison insisted in The Federalist No. 10, was "the first object of government." The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. "Capacity, Spirit and Zeal in the Cause," as John Adams said, would "supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind." Or as the Jeffersonian St. George Tucker put it in 1803: "A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them....Equality of rights...precludes not that distinction which superiority of virtue introduces among the citizens of a republic."

Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. "One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept "any present, Emolument, Office, or Title, of any kind whatever, from...[a] foreign State."

Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker's explanation of the clause noted that "in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory." As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.

The Emoluments Clause has apparently never been litigated, but it has been interpreted and enforced through a long series of opinions of the Attorneys General and by less-frequent opinions of the Comptrollers General. Congress has also exercised its power of "Consent" under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.

GateHouse: Facial recognition technology and the expectation of privacy

Matthew T. Mangino

GateHouse Media

July 27, 2018

Facebook recently rolled out facial recognition tools in Europe promoted as a way to help users safeguard their online identities.

It’s a risky move. Amazon shareholders recently expressed reservations over the company’s sale of facial recognition software to police departments.

A letter from shareholders warned Amazon CEO Jeff Bezos about the potential abuses of the facial recognition technology. The letter suggested that the software “may be intended to enhance some law enforcement activities, we are deeply concerned it may ultimately violate civil and human rights.”

Just this month Microsoft President Brad Smith wrote, “We believe Congress should create a bipartisan expert commission to assess the best way to regulate the use of facial recognition technology in the United States.”

“Facial recognition technology raises issues that go to the heart of fundamental human rights protections like privacy and freedom of expression,” Smith wrote.

A sophisticated computer software, facial recognition is capable of identifying a person by comparing and analyzing patterns based on the person’s facial contours. Facial recognition was originally used for security purposes, like entering a building or logging on to a computer. However, facial recognition technology has received significant attention from law enforcement agencies as a tool for surveillance, supervision and tracking down fugitives.

What is the big deal? The U.S. Constitution doesn’t provide much protection against facial recognition, Jane Bambauer, a law professor at the University of Arizona, told Wired.

Surveillance tools, like GPS, wiretaps, cellphones are covered by the Fourth Amendment protections against search and seizure. The courts and policymakers have established guidelines for things like lineups or photo arrays.

However, there is no protection for imagery, gathered lawfully, like photographs posted online, mug shots or even driver’s license photos.

Clare Garvie of the Georgetown Law’s Center on Privacy & Technology writes that most people would be outraged if they were asked to identify themselves at a public gathering. In this country, a police officer needs to have reasonable suspicion of a crime before stopping someone on the street and asking questions.

Yet it happens every day with facial recognition surveillance. Garvie writes that every man, woman and child passing by a government-installed camera is scanned — despite no prior suspicion of wrongdoing. “Their faces are nonetheless compared against the profiles of criminals and other people wanted by the police. It enables a world where people are tracked from camera to camera throughout a city — simply because they chose to get a driver’s license.”

What is happening in China would make George Orwell blush. No other country in the world has more video surveillance. China has 170 million closed circuit television cameras and 400 million new ones being installed.

In the near future, its citizens, and those who travel there, will be exposed to a vast and integrated network of facial recognition systems monitoring everything from the use of public transportation, to speeding, to how school children behave in public school, reported The Conversation.

And what happens if facial recognition technology gets it wrong?

Facial recognition technology advances by the day, but problems with accuracy and misidentifications persist, especially when the systems must contend with poor-quality images — such as from surveillance cameras, reported the Washington Post.

The police in the UK’s South Wales rolled out crime fighting facial recognition technology. After 10 months the police declared success according to Inc. Magazine. The technology was wrong 93 percent of the time. A Freedom of Information Act request revealed that there were 173 positive identifications and 2,297 misidentifications.
The pervasive use of facial recognition technology by law enforcement creates serious privacy concerns. Some will say that facial recognition technology does no more than observe our day-to-day movements in public, the same way any individual can observe the movement of others.

Others will argue that private citizens should not be subject to a “search” comparing their face to a vast pool of data every time they leave their homes.

Ultimately the courts must decide this fundamental question: Does a reasonable expectation of privacy under the Fourth Amendment preclude the government from capturing law abiding citizens’ faces and identifying them without their knowledge or consent?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Jails using video visitation to ban in-person visitation

Jails are increasingly offering video visitations for inmates, and some facilities are citing the new, sometimes pricey service as a reason to restrict or ban in-person visitations, reported the ABA Journal.

The Northwest Arkansas Democrat reports on the upcoming launch of a remote video visitation system in Benton County, Arkansas, that will cost 50 cents a minute in 15-minute increments. The jail will no longer allow in-person visits, the only free way to visit inmates for those who are not attorneys.

People who want to visit the inmates can use their home computer to access smartjailmail.com.

A spokesperson for the sheriff’s office told the Democrat that eliminating in-person visits will decrease contraband and free up employees who had to monitor such visits. It will also be easier for friends and family members who had to travel long distances to visit inmates.

Video visitation is increasing in popularity, and jails often get “a hefty percentage” of the fees, Ars Technica reported in May. The Guardian also noted the trend, as did the Los Angeles Times in an editorial last year against elimination of in-person visitation.

Lucius Couloute, an expert at the Prison Policy Initiative, told Ars Technica and the Guardian that an estimated 600-plus correctional facilities across the country have implemented some form of video calling. About three-quarters of the jails that implement the technology “end up eliminating or scaling back in-person visits,” Couloute, told Ars Technica.

The fees paid to jails provide an incentive to restrict in-person visiting, prisoner-rights advocate Alex Friedmann told Ars Technica. The price for the service is sometimes as high as a dollar a minute, Friedmann said. Typical commissions paid to jails are in the 20 to 25 percent range, he said.

The American Correctional Association said in a 2016 policy statement that emerging technologies should be used as supplements to in-person visitation, and they should not create an unreasonable financial burden on inmates and their families and friends.

The ABA Criminal Justice Section’s Standards on the Treatment of Prisoners, adopted by the House of Delegates in 2010, also warn about eliminating in-person visitation. According to Standard 23-8.5, prisoners confined more than 30 days should generally be allowed contact visits. Corrections officials should promote communication between prisoners and their families, including video visitation, “provided that such options are not a replacement for in-person contact,” the standard says.

The Guardian asks whether in-person visitation is a legal right. The U.S. Supreme Court has not considered the question, although the court ruled in 2003 that visitation restrictions with a rational relation to prison management don’t violate a constitutional right of association, according to the Guardian.

To read more CLICK HERE

Federal judge rules Emolument Clause case can proceed against President Trump

A federal judge ruled that a lawsuit alleging President Trump's business interests violate the Constitution can proceed, reported NPR.

Federal District Judge Peter Messitte denied the Department of Justice's request to dismiss a case brought by the attorneys general of Maryland and the District of Columbia. The Emoluments Clause bars any president from personally profiting from his dealings with foreign governments — or even U.S. state governments.

It's the first ruling in federal court to define "emolument," which goes undefined in the U.S. Constitution's two emoluments clauses.

In a blow to President Trump, a federal judge says a lawsuit that alleges Trump's business interests violate the Constitution can proceed.

Federal District Judge Peter Messitte denied the Department of Justice's request to dismiss a case brought by the attorneys general of Maryland and the District of Columbia. The Emoluments Clause bars any president from personally profiting from his dealings with foreign governments — or even U.S. state governments.

It's the first ruling in federal court to define "emolument," which goes undefined in the U.S. Constitution's two emoluments clauses.

Messitte rejected the "cramped interpretation" of the term offered by the Justice Department. He wrote that the term applies to "any profit, gain or advantage" of value that Trump has gotten from foreign, the federal or domestic governments.

"Plaintiffs have plausibly alleged that the President has been receiving or is potentially able to receive 'emoluments' from foreign, the federal and state governments in violation of the Constitution," wrote Messitte.

Until the Trump administration, emoluments have been an obscure part of the Constitution, said John Mikhail, a professor at Georgetown University Law Center, whose research was cited in Messitte's opinion.
"I think it comes as a surprise to many people that there are terms in the Constitution, individual words that at this late date, 230-plus years into the operation of the Constitution, that those have never been authoritatively adjudicated," said Mikhail.

The judge's decision clears the way for the Maryland and District of Columbia legal teams to begin the discovery process, which could include requesting sensitive financial information from the president and the Trump Organization.

The Justice Department, which represents Trump in this matter, argues the clause is not relevant to Trump's businesses. "We continue to maintain that this case should be dismissed," said Andy Reuss, a spokesman for the Justice Department.

It's the second victory for Maryland Attorney General Brian Frosh and D.C. Attorney General Karl Racine, who were granted legal standing to sue Trump in March. They allege their jurisdictions are economically and financially harmed as political and diplomatic officials shift their business to Trump's downtown Washington, D.C., hotel from nearby convention centers owned by those governments.

"Today's historic ruling is a substantial step forward to ensure President Trump stops violating our nation's original anti-corruption laws," said Racine. "The Constitution is clear: The president can't accept money or other benefits from foreign or domestic governments."

To read more CLICK HERE

Ninth Circuit rules Second Amendment includes right to carry a firearm in public

The US Court of Appeals for the Ninth Circuit  ruled 2-1 that the Second Amendment  includes the right to carry a firearm in public for self-defense purposes, reported Jurist.

The Ninth Circuit said that Hawaii’s license to carry statute unconstitutionally restricted the plaintiff’s Second Amendment rights because it limited open carry privileges to anyone who “is engaged in the protection of life and property.”

Judge Diarmuid O’Scannlain wrote for the majority, saying:

The Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, “in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion…” While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

Judge Richard Clifton wrote in his dissent that:

[T]he majority opinion has disregarded the fact that states and territories in a variety of regions have long allowed for extensive regulations of and limitations on the public carry of firearms. Many have taken the approach that Hawaii has taken for almost a century.

The case was brought by George Young in 2012 after being twice denied a handgun license by the County of Hawaii’s Chief of Police in 2011 as he did not meet the requirements.

To read more CLICK HERE

KDKA-AM: Matt Mangino Reports on the Jordan Brown Conviction

(KDKA-AM) Former Lawrence County Prosecutor and Former Member of the PA Board of Probation and Parole Matt Mangino joined Robert Mangino to talk about how Pennsylvania’s highest court overturns the conviction of Jordan Brown who was found guilty in the shotgun shooting of his father’s pregnant fiancée in 2009 when he was 11. 

To listen to the interview CLICK HERE

The New Debtors' Prison: Locking up people who can't afford to pay fines or court costs

Many civil liberties and civil rights organizations rightly point out that the practice of jailing people for unpaid fines and fees is turning our criminal justice system into a de facto debtors’ prison,, reported The American Conservative.

The Marshall Project’s Eli Hager says debtors’ prisons are “any prison, jail, or other detention facility in which people are incarcerated for their inability, refusal, or failure to pay debt.” They’ve been outlawed by Congress since 1833 (Dickensian times), at least in theory. In 1983, the Supreme Court ruled in Bearden v. Georgia that judges must first consider whether a suspect is “willfully” refusing to pay a fee before locking him or her up for failure to pay.

Even aspects of our criminal justice system that are typically thought of as free for the indigent aren’t really free at all. For example, in 2014, NPR found that suspects in 43 states and the District of Columbia were required to pay public defender fees. The initial application fee can run anywhere from $10 to $400; additional reimbursements after the case is settled can cost thousands of dollars.

If let out of prison, the suspect has more than just the public defender to compensate. For example, if the alleged criminal is required to take drug tests, they must pay for that. If they are put under house arrest, they must pay rental fees for an ankle bracelet. These fees vary from state to state, but typically add up to hundreds and even thousands of dollars.  

The question still remains: how have judges legally been able to sentence poor citizens for failure to post collateral? The answer lies in the vague nature of the Supreme Court’s ruling in the 1983 Bearden case.

In the majority opinion, the Court ruled, “The State may not use as the sole justification for imprisonment the poverty or inability of the probationer to pay the fine and to make restitution if he has demonstrated sufficient bona fide efforts to do so.”

The problem here arises from the fact that the court never explained what constitutes “sufficient bona fide efforts.” With such a vague ruling, judges have been left with the discretion to determine whether suspects make legitimate efforts to pay the fees or not. Such a standard is arbitrary and ripe for abuse by judges who want to seem “tough on crime.”    

NPR’s investigation also found “wide discrepancies” in how judges make determinations as to whether suspects have tried to pay or not.

To read more CLICK HERE

Florida 'Stand Your Ground' law protects white man who killed black man over parking spot

Stand Your Ground, the Florida law that has allowed the likes of George Zimmerman to get away with murder, has struck again, reported TheGrio.

This time in Clearwater, Fla. as an argument over a handicapped parking spot ended in a 28-year-old black man being gunned down. Markeis McGlockton was shot and killed – collapsing and dying in front of his five-year-old son – after he was shot by 47-year-old Michael Drejka. 

Pinellas County Sheriff Bob Gualtieri announced that they will not arrest Drejka despite video showing him killing McGlockton over a handicap parking space at a convenience store.

Gualteri said that the senseless killing falls under Florida’s “stand your ground” law which gives immunity to those who claim to be in fear of their lives and use force to defend themselves. The law has led to a number of instances in which people have been gunned down under dubious circumstances, including those when the shooters instigated the confrontations.

“[The shooting] is within the bookends of ‘stand your ground’ and within the bookends of force being justified,” Gualteri said, later adding, “I’m not saying I agree with it, but I don’t make that call.”

To read more CLICK HERE

Hate crimes on the rise nationwide

Though relatively rare, hate crimes have seen an increase in cities across the USA, reported the USA Today. In California alone, the number spiked 44 percent between 2014 and 2017, up to 1,093 hate crimes last year, the state's attorney general's office reported last week.

The total number of hate crimes in the 10 largest cities in America jumped in 2017, marking four straight years for an uptick in such incidents. 

The Center for the Study of Hate and Extremism at California State University found a 12.5 percent increase in incidents reported by police last year in Chicago, Dallas, Houston, Los Angeles, New York, Philadelphia, Phoenix, San Antonio, San Diego and San Jose, California. 

The number of hate crimes reported in those cities totaled 1,038, up from 923 in 2016, according to the May study. In New York, nearly half of hate crimes last year were committed against Jewish people. In Los Angeles, gay men were targeted most. And in Boston the largest demographic hit by hate crimes were African Americans. 

Brian Levin, co-author of the report, attributed the recent increases to greater "incivility" in national politics, citing policies such as President Donald Trump's travel ban from several majority-Muslim countries. 

National events can also spur these types of crimes, according to Heidi Beirich, director of the intelligence project at the Southern Poverty Law Center. After the September 11, 2001 terror attacks, crimes against Muslim people were rampant, Beirich said. The FBI reported 8,063 hate crimes in 2000 and 9,730 in 2001. 

To read more CLICK HERE

GateHouse: Trump press conference not treason, but . . .

Matthew T. Mangino

GateHouse Media

July 20, 2018

There has been a lot of talk of treason in the aftermath of President Donald Trump’s disastrous press conference with Russian Dictator Vladimir Putin in Helsinki.

Article III, Section 3 of the United States Constitution provides, “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

The framers of the Constitution were particularly concerned with the use of treason to squelch political thought and debate. According to The Washington Post, speaking against the government, undermining political opponents, supporting harmful policies or even placing the interests of another nation ahead of those of the United States are not acts of treason under the Constitution.

Professors Paul T. Crane and Deborah Pearlstein wrote for the National Constitution Center website “the Constitution requires both concrete action and an intent to betray the nation before a citizen can be convicted of treason; expressing traitorous thoughts or intentions alone does not suffice.”

There have been few trials for treason in this country. The name most synonymous with treason in America is Benedict Arnold. He sought to undermine the efforts of the colonial army during the Revolutionary War—he fled the country before he could be charged or tried.

Aaron Burr, Thomas Jefferson’s vice-president, disgraced by killing Alexander Hamilton in a duel, sought to establish a Mexican empire which would have included annexing territories from within the United States. He was tried for treason.

Burr was found not guilty. Chief Justice John Marshall said that to prove treason, “war must actually be levied against the United States ... conspiracy (to levy war) is not treason.”

Jefferson Davis, president of the Confederacy, was indicted for treason at the end of the Civil War. The former United State Senator was never tried and spent only two years in custody.

The most famous “traitor” trial of the 20th century had nothing to do with treason. Julius and Ethel Rosenberg were prosecuted for disclosing atomic secrets to the Soviet Union. The Rosenbergs were charged with conspiracy to commit espionage, not treason.

The Espionage Act stipulates that providing military secrets to any nation–enemy or not– is an act of espionage. The highly publicized trial was replete with instances where the prosecutor alleged that the Rosenbergs were traitors and committed treason.

In 1953, in the midst of the “red scare” the Rosenbergs were executed.
This week, former CIA director John Brennan tweeted that Trump’s comments at the Helsinki news conference “rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous.″

Can Trump be considered a traitor for giving “aid and comfort” to an enemy?
First, one must determine if Russia is an enemy of the United States. An enemy is a nation or an organization with which the United States is in a declared open war. Although Russia has engaged in cyber-attacks on the nation’s political institutions, the U.S. is not at war with Russia.

Russia is an adversary whose interests are frequently at odds with those of the United States, but for purposes of treason law, according to the Washington Post, it is no different than Canada, France or Brazil.

Although President Trump’s kowtowing to a Russian dictator is embarrassing, and without precedent, it is not treason.

However, treason is not the end of the story. As special counsel Robert Mueller continues to methodically examine evidence of Russian interference in the 2016 presidential election—the President’s conduct, and that of his close political aides—before and after the election—remains under scrutiny.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

To visit the column CLICK HERE

PLW: Pa. Death Penalty Report Is Chock-Full of Recommendations

Matthew T. Mangino

The Legal Intelligencer

July 19, 2018

Did the commonwealth of Pennsylvania need a report, six and a half years in the making, to acknowledge that the state’s death penalty has some problems?

All one needs to know is that Pennsylvania has executed three men since the death penalty was reinstated in 1978. All three men volunteered to be executed—waiving their appeal rights. In fact, Pennsylvania has not carried out an involuntary execution since 1962. In the last 30 years, approximately 35 inmates have died while waiting for an execution date.

The state’s most recent execution occurred in 1999, when Gary Heidnik was put to death for the murders of two women he tortured in his Philadelphia home. The other two executions were in 1995. Leon Moser killed his wife and two daughters, and Keith Zettlemoyer killed a “friend” who planned to testify against Zettlemoyer at his trial for robbery.

At the end of June, the long-awaited report, “Capital Punishment in Pennsylvania,” issued by the Task Force and Advisory Committee on Capital Punishment through the Joint State Government Commission was unveiled. The report took on a sense of urgency when Gov. Tom Wolf declared a moratorium on the death penalty.

The governor could not really shut down the death penalty but he had the authority pursuant to Article IV, Section 9 of the Pennsylvania Constitution to grant reprieves and exercise that authority for any reason—or no reason at all.

Wolf’s announcement suggested that the current system of capital punishment is “error-prone, expensive and anything but infallible.” Wolf made it clear that executions would not resume until he had an opportunity to review the report.

The Task Force and Advisory Committee chose not to directly address the governor’s action or, more appropriately, his inaction. However, as a member of the advisory committee I acknowledge that the death penalty needs to be overhauled or abolished.

Senate Resolution No. 6 of 2011 charged the Task Force and Advisory Committee with addressing 17 specific issues regarding capital punishment and making recommendations for reform.

After our initial conference, the advisory committee divided into subcommittees on impact, policy and procedure.

The subcommittee on impact developed the material in the report on cost, impact on and services for family members, secondary trauma, length and conditions of confinement on death row and public opinion. The subcommittee on policy developed the material on bias and unfairness, proportionality, mental illness, penological intent and alternatives. The subcommittee on procedure developed the material on mental retardation, juries, state appeals and postconviction, clemency, innocence, counsel and lethal injection.

The advisory committee was to have completed its findings and recommendations by the end of 2013. However the collection of data prolonged the release of the report. The work of the committee was important and the painstaking collection and analysis of data was essential to making sound recommendations to the Senate. The committee chose thoroughness over expediency.

A thumbnail sketch of some of the committee’s recommendations provides some insight into the state of the death penalty in Pennsylvania.

The committee recommends that Pennsylvania enact legislation to provide for routine and systematic collection of data for proportionality reviews that can reveal unfair, arbitrary or discriminatory variability in pursuing the death penalty.

The committee proposed amending statutory aggravating and mitigating circumstances to reduce any significant difference in the crimes of those selected for the punishment of death as opposed to those who receive life in prison. Pursuant to 42 Pa.C.S.A. 9711, there are currently 18 legislatively established aggravating circumstances on the books in Pennsylvania.

The Rules of Criminal Procedure should be amended to require a judge to determine mental retardation or intellectual disability at the pretrial stage. Currently in Pennsylvania a jury determines post-trial if the defendant is intellectually disabled.

The committee suggests that pretrial determination of intellectual disability would save a significant amount of money and many days of court time because the case would not proceed as a death penalty case.

The committee also addressed mental illness and the death penalty. A recommendation proposes relief for a defendant who is not legally insane but is suffering from mental illness. The committee suggests extending a version of guilty but mentally ill as a bar to imposition of the death penalty based on a defendant’s mental disorder significantly impairing the defendant’s exercise of rational judgment or conformance to legal requirements.

The committee also acknowledged concern with jury instructions, suggesting standard jury instructions be rewritten by attorneys and judges with the assistance of linguists, social scientists and psychologists, as well as data disclosing the misunderstanding and misapplication of current jury instructions.

Pennsylvania is the only state that contributes nothing for indigent defense. All public defender services are funded locally with counties carrying the full burden of indigent defense costs. The subcommittee on procedure called for the creation of a statewide capital defender office funded by the commonwealth rather than having indigent capital defendants represented by county public defender offices.

In addition, the committee recommends that the lethal injection protocol be public rather than confidential. Although, the constitutionality of lethal injection, as with all forms of execution, has consistently been upheld by the U.S. Supreme Court, the shortage of drugs used in executions has generated an endless flow of litigation. The committee suggests the use of an appropriate and effective execution drug that executes humanely and is selected through qualified professional experts.

The report comes at a time when support for the death penalty is waning. Less than half of Americans—49 percent—favor the death penalty for people convicted of murder, according to a 2016 poll by Pew Research.

Nineteen states and the District of Columbia have abolished capital punishment. According to the New York Times, additional states—including Pennsylvania—have imposed moratoriums on executions. Not only are executions down, death sentences are down as well. There are 31 states with the death penalty. Only 14 states handed down death sentences last year, for a total of 39 across the country—less than half the number six years ago.

“The committee that issued the report was largely comprised of anti-death penalty advocates, and it appears that its findings restate the usual litany of opinions held by death penalty opponents,” said Richard Long, executive director of the Pennsylvania District Attorneys Association, in a Pittsburgh Post-Gazette article.

The response is not a surprise. When Gov. Wolf announced his de facto moratorium the Pennsylvania District Attorney’s Association response was, “He has rejected the decisions of juries that wrestled with the facts and the law before unanimously imposing the death penalty, disregarded a long line of decisions made by Pennsylvania and federal judges, ignored the will of the Legislature, and ultimately turned his back on the silenced victims of cold-blooded killers.”

The death penalty in Pennsylvania and nationwide is at a crossroad. Although about 3,000 men and women sit on death row nationwide, there have only been 83 executions carried out in the last four years. It is time for comprehensive reform that will result in carrying out executions in Pennsylvania—or, absent reform, the abolition of the death penalty.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a member of the Task Force and Advisory Committee on Capital Punishment. His book, “The Executioner’s Toll,” 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Mangino talks about Jordan Brown decision on WFMJ-TV21

Watch my interview on WFMJ-TV21 regarding the Pennsylvania Supreme Court ruling overturning Jordan Brown's juvenile adjudication of delinquency for the 1st degree murder of Kenzie Houk an her unborn child.
To watch the interview CLICK HERE

Mangino discusses Jordan Brown decision by PA Supreme Court

Watch my interview on Pennsylvania Supreme Court ruling overturning Jordan Brown's juvenile adjudication of delinquency for the 1st degree murder of Kenzie Houk an her unborn child. 
To watch the interview CLICK HERE

Ohio executes man for Cincinnati murder 34 years ago

The 14th Execution of 2018

Ohio carried out its first execution of the year this morning, using a mixture of three drugs to execute Robert Van Hook for the 1985 murder of a Cincinnati man after the two met at a nightclub, reported WKSU and the Cincinnati Enquirer.

Van Hook broke into sobs before he was put to death July 18, 2018.

"I'm no good," he said from under the straps that held him to the lethal injection table.

He recited a Norse prayer used in a 1999 Antonio Banderas film and sang to himself before going quiet.

He gasped and wheezed briefly after the drug cocktail was injected into his veins, then died.

Van Hook's execution took place 33 years after he stabbed a man to death in a Cincinnati apartment. He nearly disemboweled the 25-year-old victim, David Self, after the two met at a Downtown Cincinnati gay bar.

Van Hook was the first killer from Hamilton County to be executed in seven years.

Along with prison personnel, 10 people and four members of the press traveled to Lucasville to witness the execution.

It was silent in the witness rooms when Van Hook entered the death chamber at the Southern Ohio Correctional Facility in Lucasville. In a white shirt and black track pants, he glanced at those watching before climbing onto the injection table using a small metal stool. 

The Associated Press’s Andrew Welsh-Huggins witnessed the execution of Van Hook, who wished peace to the family of his victim, David Self, and recited a Norse prayer as he was put to death.

“There were no signs of obvious distress," Welsh-Huggins said. "His chest rose and fell rapidly, but it was not the extreme up and down high rising and falling that we have seen in the past. He wheezed several times for about a minute, and he sort of puffed his lips in and out and then he went still.” 

Van Hook arrived at Lucasville Tuesday morning and spent much of the day talking to his family, friends and attorneys, according to Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith, who provided a timeline of his final 24 hours.

She said prison officials noted he was in good spirits, sometimes laughing and that his conversations were "upbeat."

One of his many visitors was Joe D'Ambrosio who spent 20 years on death row in Ohio for a 1998 Cuyahoga County homicide. He was freed in 2012 after his case went all the way to the U.S. Supreme Court.

Van Hook received communion Tuesday night as well.

His final dinner: Three double cheeseburgers, three orders of french fries, a whole strawberry cheesecake with whipped cream, a large vanilla milkshake, and grapefruit juice.

He had a restless night only sleeping for about an hour. He mostly stayed in his bed singing and listening to music.

Wednesday morning, he refused breakfast but asked to finish the leftover cheesecake. He was witnessed performing a Buddhist chant with a friend.

About an hour before he was taken to the death chamber, he appeared to be meditating.

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Texas executes man for 2004 murder of shopkeeper

The 13th Execution of 2018

Texas executed Christopher Young on July 17, 2018 for murdering a store owner during a robbery in 2004, despite calls from some relatives of the victim that his life be spared, reported Reuters.

Young, 34, was put to death by lethal injection at the state’s death chamber in the city of Huntsville for the murder of Hasmukh Patel at his convenience store in San Antonio, the Texas Department of Criminal Justice said.

Young became the 13th U.S. inmate put to death this year, and the 553rd in Texas since the U.S. Supreme Court reinstated the death penalty in 1976, the most of any state. Prior to Young’s lethal injection, Texas had carried out seven executions so far this year.

Lawyers for Young, who is African-American, filed a last-minute appeal to halt his execution, arguing that race was a factor in the decision this month by the Texas Board of Pardons and Paroles to deny a request to halt the execution.

A U.S. district court judge and an appeals court on Tuesday rejected the petition to spare his life.

Young’s lawyers had noted that the board had recommended clemency in a similar case earlier this year that involved a white death row inmate.

Those arguing for clemency, which was backed by the murder victim’s son, Mitesh Patel, wanted his sentence commuted to life in prison.

In his final statement, Young said: “I want to make sure the Patel family knows I love them like they love me. Make sure the kids in the world know I’m being executed and those kids I’ve been mentoring keep this fight going,” according to the Texas Department of Criminal Justice.

Texas contended that Young deserved to die for the killing, which came shortly after he had sexually assaulted and carjacked a woman.

“Young provides no direct evidence that any member of the board acted with racial animus,” Texas said in a legal filing.

Young was the 1,478th person executed in the United States since 1976, the 553rd person executed in Texas, and the 1,303rd person executed by lethal injection.

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The Vindicator: Ohio on right track with justice reform

Matthew T. Mangino

The Youngstown Vindicator

July 15, 2018

When crime rises, the first inclination of lawmakers is punishment. Longer sentences, mandatory minimums and extended periods of supervision all add to the cost of the criminal justice system with little impact on the rate of recidivism.

For politicians, that’s a tough sale to the public. Trying to convince taxpayers that it’s more prudent and cost effective to invest in rehabilitation rather than punishment can cost a lawmaker his job.

Ohio is in a position to proceed with meaningful sentence reform without waiting on politicians to act. A bipartisan coalition of community, law enforcement, faith and business leaders has proposed a ballot measure for November to reduce penalties for nonviolent drug offenders.

Signatures

Supporters of the “Neighborhood Safety, Drug Treatment and Rehabilitation” amendment submitted 730,031 signatures recently to the various county election boards. The Ohio Secretary of State has until July 24 to certify or reject signatures. To qualify for the ballot, 305,591 valid signatures of Ohio registered voters are needed.

The reform initiative comes at a time when Ohio is in the midst of one of the nation’s most lethal periods of drug abuse. Ohio’s drug overdose deaths rose 39 percent – the third-largest increase nationwide – between mid-2016 and mid-2017, according to figures released earlier this year by the federal government.

The state’s opioid crisis continued to explode in the first half of last year, with 5,232 Ohio overdose deaths recorded in the 12 months ending June 30, 2017, according to the Centers for Disease Control and Prevention.

Just across the border, Pennsylvania saw the largest increase in overdose deaths during that same period.

The escalation of drug deaths in Ohio was nearly three times the 14.4 percent increase in deaths nationally, which grew to about 67,000 across the U.S., according to government estimates.

In Columbus, Franklin County Coroner Anahi Ortiz said that the more recent estimates are even more grim.

“Compare the first three quarters of 2017 to the first three quarters of 2016,” Ortiz told the Columbus Dispatch. “So, an actual comparison day by day – we’ve already seen a 57 percent increase.”

Fentanyl is what’s mostly spurring the additional deaths, officials said. The synthetic opiate has been cut into the heroin supply and, in some cases, replaced heroin that’s sold on the streets, reported the Cincinnati Enquirer.

Fentanyl is more deadly because it’s about 50 percent stronger than heroin and is being altered to create a more potent fentanyl, according to the federal Drug Enforcement Administration.

Ohio’s reform initiative is risky. It is a long-term investment when people are looking for an immediate fix. Money saved from those affected by the amendment would be diverted to substance-abuse programs and to crime victims’ services.

Under the drug treatment and rehabilitation amendment, possessing, obtaining or using a drug or drug paraphernalia would be a misdemeanor offense, with a maximum punishment of 180 days in jail and $1,000 fine. First and second offenses within a two-year period could only be punished with probation. The amendment would not apply to drug dealers.

Half-day credit

Convicted individuals could receive a half-day credit against their sentence for each day of rehabilitative work or programming, up to 25 percent of the total sentence.

An individual on probation for a felony would not be sent to prison for a non-violent violation of probation.

The question facing policy makers: Is public safety better served by incarcerating drug offenders, or would drug treatment and prevention programs be more efficient and effective at curbing drug abuse and promoting public safety?

According to the Justice Policy Institute, studies by the nation’s leading criminal justice research agencies have shown that drug treatment, in concert with other services and programs, is a more cost effective way to deal with drug offenders.

Ohio appears to be on the right track.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

Lynchings in the American west

Scholars of lynching debate its definition, some even concluding that it is impossible to define, reported the High Country News. One commonly used, but still contested, definition from 1940 listed several necessary conditions: “There must be legal evidence that a person has been killed, and that he met his death illegally at the hands of a group acting under the pretext of service to justice, race, or tradition.” Because definitions are difficult and evidence elusive, the precise number of lynching victims remains unknown. But the death toll hovers somewhere around 5,000.

For many Westerners, the word “lynching” brings to mind the vigilantes and what came to be known as “frontier justice.” The terms play on the long-held mythologies of a violent frontier where the need for justice sometimes preceded an established legal system. In this telling, men banded together to fulfill community obligations, punishing those who transgressed the laws of property (e.g., they stole livestock) or person (e.g., they raped women). White men formed posses and delivered swift justice to the guilty. This storyline goes back to some of the earliest Western historians, such as Hubert Howe Bancroft, who found much to admire in these actions. In his two-volume “Popular Tribunals,” in 1887, Bancroft characterized the San Francisco Vigilance Committees as “virtuous, intelligent, and responsible citizens with coolness and deliberation arresting momentarily the operations of law for the salvation of society.” Lynchings were regarded as exercises of sovereignty, the will of the people — as American as the frontier from which the nation supposedly sprang. Not surprisingly, the reality was more complicated.

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"Good guy with a guy' rare and at times not good

The FBI examined 160 shootings between 2000 and 2013 and found that most of the violence ended when the assailant stopped shooting, committed suicide or fled, reported the Washington Post. Unarmed citizens successfully restrained shooters in 21 of those incidents, according to the FBI. Two attacks stopped when off-duty officers shot and killed the attackers. Five ended in much the way the attack at Louie’s did — when armed civilians, mostly security guards, exchanged fire with the shooters.

In the prominent recent examples, civilians have, as in Oklahoma City, successfully intervened in mass shootings. In November, Stephen Willeford, a former NRA instructor, shot a gunman who killed more than two dozen people inside a Sutherland Springs, Tex., church, hitting the attacker twice. The shooter fled and later shot himself in the head while under chase. And in June, a pastor and volunteer firefighter who had been through active-shooter training killed a carjacker who opened fire inside a Walmart store in Tumwater, Wash. In Oklahoma City two men shot and killed an active shooter outside a restaurant. 

But interventions by “Good Samaritans” also have ended in tragedy.

In 2014, husband-and-wife attackers killed two Las Vegas police officersbefore going into a nearby Walmart and firing a shot in the air. Joseph Wilcox, 31, a civilian with a handgun and a concealed-carry permit, pulled his weapon to confront the male shooter, but the man’s wife shot Wilcox in the chest, killing him.

When Prince George’s County police detective Jacai Colson responded to a 2016 attack on a police station in his street clothes, another officer mistook him for a threat and shot him.

“The shot that struck and killed Detective Colson was deliberately aimed at him by another police officer,” the police chief said.

Ronal Serpas, former police chief in New Orleans and Nashville who lived near Tumwater when he was chief of the Washington State Patrol, said such situations raise life-or-death concerns for police officers.

“How is the officer going to discern who is the Good Samaritan and who is not?” Serpas said. “They don’t have placards on the front of their shirts that say ‘I’m the good guy’ or ‘I’m the bad guy.’ ”

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KDKA-AM:Former D.A. Matt Mangino Reacts To The Charges Against Michael Rosfeld

Former Lawrence County District Attorney and Member of the State Parole Board, Matt Mangino joined Robert Mangino to talk about the charges filed against East Pittsburgh police officer, Michael Rosfeld who is responsible for the shooting death of 17-year-old Antwon Rose.  Matt Mangino said it is certainly a homicide, but whether or not it meets the elements of 1st or 3rd degree murder or manslaughter, a jury will have to decide. 

Listen to the interview CLICK HERE

GateHouse: NACDL Report: Defendants ‘are being coerced to plead guilty’

Matthew T. Mangino

GateHouse Media

July 13, 2018

week the National Association of Criminal Defense Lawyers (NACDL) issued a report on the “trial penalty.” According to the report defendants “are being coerced to plead guilty” because the penalty for exercising their constitutional right to be proven guilty beyond a reasonable doubt at trial is “simply too high to risk.”

According to the NACDL’s website, the report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable recommendations to address this crisis.

In the report, NACDL examines sentencing and other data underlying the fact that, after a 50-year decline, fewer than 3 percent of federal criminal cases result in a trial.

Former Eastern District of New York Judge John Gleeson authored a foreword to the report suggesting, “Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”

Judge Gleeson is the same judge who told the New York Times in 2014,“Prosecutors routinely threaten ultraharsh, enhanced mandatory sentences that no one — not even the prosecutors themselves — thinks are appropriate.” Judge Gleeson said the way prosecutors use trial penalty, “coerces guilty pleas and produces sentences so excessively severe they take your breath away.”

The report contends that trial by jury has been replaced by a “system of pleas” which diminishes, to the point of obscurity, the role that the framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.

Guilty pleas have replaced trials for a very simple reason: Individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they go to trial and lose.

Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt. The report contends that defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law.

Beyond a reasonable doubt — the bedrock of the criminal justice system — plays no role in an alarming number of cases. What this means is that an insignificant number of offenders heading off to state or federal prison were proven guilty of anything. Sure, those defendants acknowledged their guilt by choosing to enter a guilty plea; but shouldn’t the most revered legal system in the world provide something more in terms of protection for those accused of a crime?

On the other hand, can the criminal justice system function without plea bargains? The plea bargain, however unpopular or unseemly, is a much needed tool in the administration of justice. If the plea bargain were to disappear the criminal courts would grind to a halt. Several years ago, U.S. Supreme Court Justice Anthony Kennedy said plea bargaining determines “who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

Why shouldn’t there be a trial penalty? What reasonably prudent defendant, represented by a reasonably competent attorney, would plead guilty if she knew a conviction at trial would bring the same penalty as pleading guilty. A defendant would have nothing to lose by going to trial. The number of trials would increase as would the direct appeals and collateral challenges. A system that is already overburdened would be pushed to the limit.

The question is how to balance the fundamental principles of the U.S. Constitution with the mechanics of the criminal justice system? The NACDL report may well be a first step in finding that balance.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

 To visit the column CLICK HERE

Prosecutor suspended over profane social media rant

The lead gang prosecutor in San Bernardino County, California, has been placed on administrative leave after using the C-word to describe U.S. Rep. Maxine Waters on social media, reported the ABA Journal.

The prosecutor, Michael Selyem, was placed on leave as the county conducts a personnel investigation, according to San Bernardino County District Attorney Michael Ramos. The San Diego Union-Tribune and KABC have stories on Ramos’ decision, while the jointly owned San Bernardino Sun and Orange County Register broke the news about the posts.

The posts under Selyem’s name appeared on Facebook and Instagram; both accounts have since been deleted, according to the Register and Sun. In one post, Selyem wrote about Waters, a California Democrat. Selyem reportedly wrote: “Being a loud-mouthed c#nt in the ghetto you would think someone would have shot this bitch by now.”

He also wrote that a police shooting victim was a “s—bag” who “got exactly what he deserved.” And he posted an altered picture of Michelle Obama holding a sign that read: “Trump grabbed my penis.”

The Sun and Register received screenshots of the social media rants from an accountant who received them from a former employee in the District Attorney’s office. Selyem did not comment when contacted by a reporter for the newspapers.

San Bernardino attorney Stephen Levine told the publications he doesn’t defend the tenor of the posts but he has seen no evidence that Selyem’s personal beliefs influenced his professional responsibilities. Loyola law professor Laurie Levenson said she found the social media comments “appalling and unprofessional.”

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Officer tattoos a concern for LAPD

For decades, the Los Angeles County Sheriff’s Department has struggled to combat secretive cliques of deputies who bonded over aggressive, often violent police work and branded themselves with matching tattoos, reported the Los Angeles Times.

A federal judge called out the problem nearly 30 years ago, accusing deputies of running a "neo-Nazi, white supremacist gang" named the Vikings within the Lynwood station. Others followed with names such as the Regulators, Grim Reapers, Rattlesnakes and the Jump Out Boys. Inside the county’s central jail, the 2000 Boys and 3000 Boys ran roughshod over the lockup’s toughest floors.

Now, despite past attempts by sheriff’s officials to discourage internal cliques, fresh allegations have arisen of deputies in the department’s Compton station adorned with matching skull tattoos.

One deputy acknowledged in a recent deposition that he and 10 to 20 of his colleagues at the station had the tattoos but denied there was a formal clique.

Attorneys representing the family of a black man shot by deputies during a 2016 foot pursuit have used the existence of the tattoos to argue there is a clique tied to the killing, which they allege was racially motivated.

It’s unclear whether the tattoos signal a return of a secret deputy group that celebrates violence or something more benign. But some law enforcement experts said it’s important for the Sheriff’s Department to understand what’s going on and make sure the clique mind-set has not returned.

“In addition to investigating the police shooting, the department should also look at the culture,” said Alex Busansky, a former prosecutor who served on a county commission that in 2012 found that the department’s tolerance of cliques contributed to excessive force in the jails. “A place where 20 police officers receive matching tattoos is a place where there is a mentality of us-versus-them, and that on its face is concerning.”

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Third Circuit upholds NJ's new bail system

The US Court of Appeals for the Third Circuit  upheld a US District Court ruling that New Jersey’s new bail system, which does away with most cash bail, is constitutional.

The law was challenged by Brittan Holland, who was arrested for aggravated assault last year. He alleged that the new system created by the New Jersey Criminal Justice Reform Act was unconstitutional because it violated the Fourth Amendment, Eighth Amendment, and the due process clause of the Fourteenth Amendment of the US Constitution.

The opinion, written by Judge Thomas L. Ambro noted that:

We find no right to these forms of monetary bail in the Eighth Amendment’s proscription of excessive bail nor in the Fourteenth Amendment’s substantive and procedural due process components. We also reject Holland’s “less intrusive means” theory of a Fourth Amendment violation, and so we hold he has not made a sufficient showing of a violation of that constitutional amendment. Without a constitutional right violated, and with reconsideration of current release conditions an option if circumstances suggest and a request made, irreparable harm does not exist.

The courts ruling comes in the middle of a controversy surrounding the cash bail system. This system, used in many states, was criticized [JURIST report] by the UN Special Rapporteur on Extreme Poverty and Human Rights for criminalizing those who do not have the funds to pay monetary bail. In April, the American Civil Liberties Union sued [JURIST report] a Texas county after it says the county jailed many defendants for being unable to afford the bail without a “meaningful hearing.” 

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U.S. Supreme Court nominee on hot-button issues

Here is what you need to know about U.S. Supreme Court nominee Judge Brett Kavanaugh.  He is 53, married and has two children.  He currently serves as a judge on the powerful US Court of Appeals for the District of Columbia Circuit. Here's where he stands on some hot-button issues as established by CNN:

Abortion

Because he was a swing-vote in favor of abortion rights, Kennedy's departure from the court has sparked alarm among abortion rights activists that Roe v. Wade, the landmark Supreme Court ruling that legalized abortion nationwide in 1973, could be overturned. In addition, Trump has long vowed to appoint justices who would reverse Roe and allow states to determine whether abortion should be legal.

Kavanaugh has not expressed outright opposition to Roe v. Wade.

One of his opinions likely to draw scrutiny from senators is a his dissent from a ruling of the DC Circuit last October that an undocumented immigrant teen in detention was entitled to seek an abortion.

In his dissent, Kavanaugh wrote the Supreme Court has held that "the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion." He wrote that the high court has "held that the government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion." He said the majority opinion was "based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand." He added, however, that "all parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow."

Religious liberty

Kavanaugh's opinion in a case involving a challenge under the Religious Freedom Restoration Act to the Affordable Care Act's so-called contraceptive mandate, Priests for Life v. HHS, has also drawn scrutiny. In a dissent, he expressed sympathy for the religious challengers. Making reference to the Supreme Court's ruling in Burwell v. Hobby Lobby, he wrote that "the regulations substantially burden the religious organizations' exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs."

In a line that has attracted some conservative criticism, however, Kavanaugh also wrote in his dissent that Supreme Court precedent "strongly suggests that the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations."

Separation of powers and executive branch authority

In his time on the DC Circuit, Kavanaugh established a reputation as a skeptic of regulatory action supported by the Environmental Protection Agency under the Obama administration.

In 2012, he argued in a dissenting opinion that the EPA "exceeded its statutory authority" in a case challenging the agency over the regulation of greenhouse gases. In a separate 2014 opinion, Kavanaugh was again critical of the EPA, writing, "In my view, it is unreasonable for EPA to exclude consideration of costs in determining whether it is 'appropriate' to impose significant new regulations on electric utilities." 

Second Amendment

In 2011, Kavanaugh dissented from a majority opinion of the DC Circuit that upheld a ban that applied to semiautomatic rifles in the District of Columbia.

In his dissent, he wrote that the Supreme Court had previously "held that handguns -- the vast majority of which today are semi-automatic -- are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens."

Citing a previous high court ruling, Kavanaugh went on to say, "It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that DC's ban on them is unconstitutional."

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